Former medical examiner manager fighting to regain job

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Raleigh, N.C. — A former manager at the Office of the State Medical Examiner was in court Wednesday trying to get his job back, alleging that he was forced out because he told investigators that a state pathologist mishandled evidence in a homicide.

Kevin Gerity, who is suing the state under the Whistleblower Act, also wants $400,000 in damages.

A former autopsy manager, Gerity was working with his boss, Deputy Chief Medical Examiner Clay Nichols, in 2011 on the autopsy of Terrell Boykin, one of two people killed in a Fayetteville home on May 8, 2011. His homicide remains unsolved.

Nichols' autopsy report said no bullet was found, but Gerity claims Nichols missed a bullet fragment and left it on the table. Gerity says he took the fragment to Nichols, who refused to change his report. Gerity says he then took the matter up the chain of command in the medical examiner's office, but no action was taken.

Nichols was fired in November 2013 following an investigation by the state Department of Health and Human Services. The State Bureau of Investigation also reviewed several of the cases Nichols handled, but Orange County prosecutors determined there was no criminal wrongdoing and declined to press charges.

Gerity resigned after the DHHS investigation so that he wouldn't be fired, but he now says he was fired in retaliation for cooperating with the investigations.

"We do know he made reports. We do know they took no action, and that after it became clear that the SBI and the media were interested, Mr. Gerity was promptly moved to dismiss," attorney Michael Byrne said in court Wednesday.

Attorneys for the state maintain that Gerity was an office bully who had received written warnings before and was clearly out to get Nichols.

"If he'd been working with another pathologist at the time, he would have handled the evidence differently," Dr. Lou Turner, a deputy section chief for DHHS, testified during Wednesday's hearing. "The fact that he didn't was the unacceptable personal conduct."

State officials also contend that Gerity broke the chain of custody for the bullet fragment in the Boykin case, which made it useless as evidence.

Testimony in the case is expected to run through Friday. Senior Administrative Law Judge Fred Morrison Jr. could issue a ruling as soon as next week.